Over the summer of 2018 when the family separation crisis was at its worst, Secretary Azar testified before the Senate Finance Committee saying, “There is no reason why any parent would not know where their child is located.” Azar said he could locate “any child” in his department’s care “within seconds“through an online government database.

The facts as we now know them suggest otherwise. Although HHS may have a database indicating the location of each child in HHS care, we now know from multiple government reports (HHS Inspector General, DHS Inspector General, General Accountability Office), the Trump administration implemented the family separation policy without tracking systems or planning that would allow DHS, HHS, parents, children, and their advocates to swiftly locate separated family units and keep them in contact with each other, much less swiftly reunify them. As a result, the stories of parents spending weeks and months unable to locate, communicate, much less reunite with children are sadly abundant.

Members of Congress should ask Secretary Azar tough questions at tomorrow’s hearing regarding his role in the family separation debacle, perhaps including:

Negligence or Willful Failure in Awareness of Trump Family Separation Policy

As noted by the HHS IG, there was a “steep increase” in the number of separated children in HHS Office of Refugee Resettlement (ORR) care long before the April 2018 zero tolerance policy as a result of an April 2017 Attorney General memo and an El Paso sector policy that resulted in 281 separated children. Yet, at a hearing of the Energy and Commerce Subcommittee on Investigations, U.S. Public Health Service Commissioned Corps Commander Jonathan White explained that he and others were repeatedly told there was no policy change and nothing to prepare for despite awareness of these changes. Indeed, the HHS IG found that key officials in ORR were not aware of the zero tolerance policy until it was public which made it impossible to prepare or plan for the serious consequences of separated children.

When did you first become aware of the increasing numbers of separated children in ORR care? When did you first become aware of the formal zero tolerance policy that resulted in the massive increase in separated children in ORR care – before it was publicly announced in April 2018, when it became public, or afterward? Why did it take you so long to become aware of this policy that dramatically affected your mission of protecting child welfare? Were you not negligent in your duties to protect child welfare by not learning about this sooner? In hindsight, what should you or other government officials have done to get this information to the right people sooner?

Failure to Understand Serious and Lasting Consequences of Family Separation Policy

During a Judiciary Committee hearing last month and at a previous hearing of the Energy and Commerce Subcommittee on Investigations, U.S. Public Health Service Commissioned Corps Commander Jonathan White stated that he raised serious concerns regarding family separation to his superiors given his and HHS’ expertise on child welfare issues, including the politically-appointed former director of the HHS Office of Refugee Resettlement (ORR), Scott Lloyd. Asked whether he told anyone that the government should stop separating families given the grave and lasting harm of separation to children he learned from White, Lloyd responded: “I did not.”

Even before the April 2018 public announcement of the zero tolerance family separation policy, the American Academy of Pediatrics (AAP) repeatedly sent letters to the Trump administration warning of the dangers of family separation. On March 1, 2018, the AAP sent a letter reiterating concern already expressed in a January 11, 2018 letter regarding the health and safety of children being separated from parents at the border and urging DHS to reject family separation policies. When broad-based family separation was implemented in early May 2018, the AAP immediately issued a public statement urging the administration to reverse the policy for the health and safety of children. The American Psychological Association issued a similar statement.

On June 26, Secretary Azar testified before the Senate Finance Committee saying, “There is no reason why any parent would not know where their child is located” and that he could locate “any child” in his department’s care “within seconds” through an online government database.

Based upon your June 26 testimony before the Senate Finance Committee — months into the public zero tolerance policy — it appears that you still didn’t understand the problem that HHS and DHS systems could not effectively track family units so that no one except a parent could actually locate their separated child. Remember, the parents were the ones stuck in a bureaucratic labyrinth of criminal prosecution, jail, and immigration detention, and their ability to track or contact their child relied on being able to reach someone at HHS with access to the online government database, and be able to prove from jail that they are the parent entitled to information about their child. Do you consider this an effective discharge of your duty and responsibility to protect child welfare as Secretary of HHS? In hindsight, what could you have done better?

When you first became aware of the increasing numbers of separated children in ORR care, were you aware of the serious and lasting harm separation could do to children? Did anyone raise such concerns to you, including anyone within HHS, at DHS, the White House, or external to the government? Were you aware of the public statements of concern all over the media, including the May 2018 statement by the AAP?

Do you personally believe that family separation can be severely traumatic to children, parents, and family units?

Knowing the serious and lasting harm of family separation, what did you do? Did you raise concerns with anyone, including within HHS, DHS, or the White House? Did you try to stop it? Did you try to ensure that systems were in place to “better” the separation process?

The HHS IG noted that DHS maintains a policy to separate “children from parents for the child’s safety and well-being, such as when the parent is found to pose a danger to the child or cannot care for the child because of illness or injury.” According to the HHS IG, ORR received “at least 118 children separated by DHS…from July 1 through November 7, 2018” after the Trump family separation policy supposedly ended following a federal court order on June 26, 2018. Of note, HHS IG stated: “Overall, 0.69 percent of all ORR intakes from July 1 through November 7, 2018, were separated children. This is more than twice the rate that ORR observed in 2016….”

The problem encountered by HHS when it receives these separated children is that DHS does not always provide complete and accurate information about the reason for the separation which, as the HHS IG stated:

may impede ORR’s ability to determine the appropriate placement for a child. When a proposed sponsor (including a parent) has a criminal history, ORR policy is to evaluate the severity and type of crime and the length of time that has passed since the criminal act, along with any mitigating factors. ORR officials and staff noted that from a child welfare perspective, not all criminal history rises to a level that would preclude a child from being placed with his or her parent. ORR officials stated that when DHS provided insufficiently detailed explanations for a child’s separation, ORR staff would contact DHS for follow up information. However, the spreadsheet we reviewed indicated that DHS did not always respond to these requests for follow up information.

In light of this, questions for Secretary Azar could include:

From a child welfare perspective, are all the reasons DHS continues to use to justify the separation of children appropriate? I understand family separations are being done by DHS. However, your mission is to protect child welfare. What are you doing to ensure appropriate child welfare standards are being used in making family separation determinations?

Does ORR receive the amount of information it needs from DHS to make appropriate decisions on the care of a child who has been separated? What are you doing to ensure ORR has enough information to do its job?

If family unity is usually in the best interests of the child and DHS appears to be separating children in a manner that appears to contradict basic child welfare principles, what are you doing to ensure processes or protocols are in place for ORR to help rectify the situation for separated children in ORR custody?

Continuing Family Separations – Tracking System Failures

The HHS IG found that even when the April 2018 zero tolerance policy was implemented, there was no “existing, integrated data system to track separated families across HHS and DHS.” The HHS IG also noted, “It is not yet clear whether recent changes to ORR’s systems and processes are sufficient to ensure consistent and accurate data about separated children, and the lack of detail in information received from DHS continues to pose challenges.” In light of this, additional questions for Secretary Azar could include:

What are you doing to ensure tracking systems are effective and useful for HHS and parents and separated children to effectively communicate at all times?

“Thousands” of Additional Separated Children Not Previously Reported

As noted in the HHS IG report, “thousands” more children were separated in 2017 and 2018 that were not previously reported. Members of the Subcommittee may want to ask:

Independent of the HHS IG report, were you aware of other children that may have been separated outside of the 2,800 reported to the federal court that is reviewing the Trump family separation policy? If so, why were those cases not reported to the public or Congress? If not, why were you unaware of something so critical as separated children in your care?

Since the HHS IG report, what have you been doing to ensure these families have been reunited? Will you commit to working with DHS to identify all family units?

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